When affidavit of defense in action against lunatic 44, 394, 395 324 Effect of plea of non-assumpsit to sci. fa. sur mechan- When sci, fa, may issue against survivors and execu- Right of appeal to action by tenant against landlord.. 51 Assignments of error not in accordance with Rule Summons by a justice not informing defendant Judgment entered by a justice against two defend- Plea, not of record, on which cause was tried may be Receiver of corporation resident in another State REPLEVIN. Marking saw-logs not in presence of purchaser not RESTITUTION -See Execution. Pollution of stream by drainage of mine into it inva- ROBBERY. Sufficiency of indictment for..... ROUTE OR MAIL AGENT. Not a passenger. RULES OF COURT-See Practice. By final confirmation of sale by assignee under Act 11 46 8 60 Recognizance of bail in error with single surety not 197 Declarations unnecessary in action of debt on guar- How questions of law must be reserved.. Point erroneously affirmed and then withdrawn by 175 220 332 SERVICE OF WRITS. Obtaining a plea from defendant effective as a waiver PREFERRED CREDITORS. E. Y. BRECK, Editor. N. S. Vol. XI.-No. 1. Estabilshed in 1853. AUGUST 18, 1880. THE JOURNAL FOR 1880-1881. WITH this number the JOURNAL enters on the twenty-eighth year of its existence, and is handed to our readers in, we believe, a more acceptable form than it has heretofore been published, at least for several years. The change from quarto to octavo form is made in deference to the wishes of the majority of our subscribers who have heretofore complained that the bound volumes were of an inconvenient size for frequent reference or the library. That objection now disappears, and if, in its stead, there should hereafter arise any objections as to the variety, quality or quantity of matter published, we hope our readers will be so kind as to inform us. If we are, however, enabled to yearly publish matter equal in quantity and variety to that contained in the volume just closed, we are confident that the most captious reader will not raise any objection, for a care resume of volume twenty-seven shows that we published two hundred and fifty-four opinions, two hundred and twenty-five carefully selected abstracts of cases decided in the courts of last resort of the several states and in the United States Supreme, Circuit and District Courts, numerous articles on law topics, Acts of Assembly, etc., etc. It has been our duty, also, to record the deaths of the Hon. WARREN J. WOODWARD, Hon. WINTHROP W. KETCHAM and five members of the Allegheny County Bar: Algernon S. Bell, Robert Woods, James Veech, Stephen Woods, Jr., and John H. Barton. A better idea of the amount of matter published can be gained from the statement that it would fill more than two volumes of the current series of state reports. It is gratifying to us to be enabled to state that many of the opinions of the judges of our State Supreme Court first published in the JOURNAL were copied or noticed in all the leading law periodicals of the country and that numerous orders were received for copies of the JOURNAL containing them. The opinions in the following cases were frequently called for: Hostetter's Appeal, and Heineman's Appeal, opinions by SHARSWOOD, C. J.; Allegheny City v. Zimmerman, and Munhall v. P. R. R., opinions by MERCUR, J.; Gordon v. The Com'th, JOHN S. MURRAY, Publishcr. and Small v. Same, opinions by GORDON, J.; Allegheny County v. Gibson, and P. R. R. Co. v. Langdon, opinions by PAXSON, J.; Bidwell v. Bidwell, and Williams v. The Commonwealth, opinions by TRUNKEY, J., and Walbridge v. Knipper, and Parker v. Hartley, opinions by STERRETT, J. The following table shows the number of ofinions of the several courts, with the names of the judges and number of opinions delivered by each, which were published in the JOURNAL: Supreme Court, U. S.: District Court, U. S.: Chief Justice Waite... Judges:-Clifford... Miller Field 2 Judges:-Acheson 1 10 Ketcham.......... 1 1 Court of Common Pleas No. 1, 1 Pres't Judge Stowe...... Judges:-Collier... Bailey .............. Court of Common Pleas No.2: Pres't Judge Ewing......... 5 Judges:-Kirkpatrick... White..... Orphans' Court: 1 4 Trunkey. Sterrett. ......... 27 Pres't Judge Hawkins- 22 Other Courts: Per curiam opinions........ 38 Circuit Court, U. S.: Judges:-McKennan.... 7 Pres't Judges:-Taylor.... 8 Livingston. 1 Hart...... 1 Galbraith... 1 2 Wallace Butler............. 4 Judge Bredin......... The current volume, we expect, will contain about five hundred and fifty pages. The opinions in leading cases will be, as heretofore, published in full, and of others abstracts will be made each abstract containing a reference to the publication in which the opinion may be found. We have secured, as promised in our special announcement, first published on June 26th last, the services of several members of the Allegheny County Bar, whose names appear on the first page of this number as reporters, and we expect to add from time to time the names of other gentlemen, members of the bar of this and other counties. With their aid no case of importance should be overlooked or neglected, but the fact that they are selected we hope will not deter others from calling our attention to cases, and especially to cases in the Courts of Common Pleas which involve questions of practice. The subscription price will remain as heretofore, $3.20 per annum, including postage. Supreme Court, U. S. National Savings Bank of the District of Columbia v. Ward. 1. An attorney employed by a purchaser of real estate to examine the title thereto prior to the conveyance impliedly contracts with his employer to exercise reasonablǝ care and skill in the performance of the undertaking. 2. Reasonable care and skill is also required by law of an attorney when employed to investigate the title to real estate with a view to ascertain whether it is a safe and sufficient security for a loan of money, and in either case if the attorney is negligent or fails to exercise reasonable care and skill in the performance of the service, and loss ensues to his employer from such negligence or want of care and skill, he may be held liable to his employer for the consequences of such negligence. 3. When a person adopts the legal profession and assumes whom he contracted, and upon the ground that negligence is a breach of the contract. 12. Decided cases in great numbers fully sustain these several propositions. None of these, however, give any support to such an action where it appears, as in this case, that the plaintiffs never employed the defendant to investigate the title or make the report, and that he never performed any such service at their request or in their behalf. Instead of that, he was employed by the claimant of the lot and was paid for his services by his employer. 13. Some evidence of usage was introduced, but the court held that usage will not make a contract where none was made by the parties. Error to the Supreme Court of the District of Columbia. Plaintiffs sued the defendant and alleged as the cause of action that they retained and employed him to examine and ascertained the title of the possessor of the premises described in the to exercise its duties in behalf of another for hire, he declaration, and to report to them the nature must be understood as promising to employ a reasona- 4. Proof of employment, and the want of reasonable care gence or want of reasonable care and skill in making 6. Where there is neither fraud, falsehood, nor collusion, the obligation of the attorney to exercise reasonable care and skill in the performance of the designated service is to the client and not to a third party, the rule being that the attorney, where no such wrongful elements exist, is not liable for the want of reasonable care and skill at the suit of any one between whom and himself the relation of attorney and client does not in some manner exist. 7. Cases where fraud and collusion are alleged and proved constitute a well-recognized exception to the general rule; but where the cause of action consists merely in the charge of the want of reasonable care and skill in the performance of a professional duty, the attorney is only liable to his client. 8. Actions for negligence, where the act of negligence imputed is one immediately dangerous to the lives of others, stand upon a different footing, and the rule in such cases is that the wrong-doer may be liable to the injured party, whether there be any privity of contract and extent of his title to the same, and they allege that he, the defendant, accepted the employment and reported to them that the title of the possessor of the premises was good and unincumbered. Their theory, as alleged in the declaration, is that they procured that report with a view to the making of a loan, and they allege that upon the faith and credit of it they loaned the sum of three thousand five hundred dollars to the pretended owner of the premises, and accepted as security for the same a trust deed of the property, whereas the borrower of the money was insolvent and had no title whatever to the premises, as fully and explicitly appears by a prior deed of conveyance duly recorded. Process was duly served and the defendant appeared and pleaded the general issue, which was duly joined by the plaintiffs. Continuance followed, and at the opening of the next term the parties went to trial, and the verdict and judgment were in favor of the defendant. Exceptions were filed by the plaintiffs, and they sued out the present writ of error. Six errors are assigned in this court, three of which were separately examined. They are as follows: 1. That the court erred in ruling that some privity of contract, arising from an actual employment of the defendant by the plaintiffs, is necessary to enable the latter to maintain the action. 2. That the court erred in holding that the evidence introduced did not establish such a privity of contract between the parties as entitled the plaintiffs to recover. 3. That the court erred in instructing the jury that upon the whole evidence the verdict should be for the defendant. Evidence was introduced by the plaintiffs tending to prove that the defendant is an attorney at law doing business at Washington, and that he held himself out to the public as a person skilled in the examination of titles That the to real estate situated in the district. claimant of the lot described in the transcript are responsible to their employers for the loss employed the defendant, in his professional occasioned by such neglect or want of care and character, to examine his title to that lot and to skill. Addison on Contr., (6th ed.), 400. Like report to him the condition of the same, and care and skill are also required of attorneys that the defendant, pursuant to that employ- when employed to investigate titles to real esment, reported to his employer that his title to tate to ascertain whether it is a safe or sufficient the lot was good and that the property was unin- security for a loan of money, the rule being that cumbered, the report being signed by the de- if the attorney is negligent or fails to exercise fendant and his son. It is not pretended by the reasonable care and skill in the performance of plaintiffs that they ever employed the defendant the service, and a loss results to his employers to examine the title to the lot, and it appears from such neglect or want of care and skill, he that the report was made at the sole request of shall be responsible to them for the consequences the claimant of the lot, without any knowledge of such loss. Addison on Torts, (Wood's ed.), on the part of the defendant as to the purpose 615. Attorneys at law are officers of the court, for which it was obtained. All that is conceded admitted as such by its order; but it is a misby the plaintiffs; but they gave evidence to take to suppose that they are officers of the show that the claimant of the lot presented the United States, as they are neither elected or apcertificate to certain brokers, and employed pointed in the manner prescribed by the Conthem to negotiate a loan upon the property institution for the election or appointment of such his favor for three thousand five hundred dol-officers. Ex parte Garland, 4 Wall., 333, 378. lars, on the faith of that certificate. Detailed When a person adopts the legal profession and statement is given in the transcript of the steps assumes to exercise its duties in behalf of antaken by the brokers to obtain the required other for hire, he must be understood as promloan, the substance of which is that they required ising to employ a reasonable degree of care and the party to give a negotiable note for the skill in the performance of such duties, and if amount, payable in one year, with ten per cent. injury results to the client from a want of such interest, and that he and his wife should execute a degree of reasonable care and skill, the attora trust deed of the lot to them as trustees to se- ney may be held to respond in damages to the cure the payment of the note when due. Pre-extent of the injury sustained. Proof of emliminaries being arranged, the brokers applied to the plaintiffs for the loan and obtained the same, giving the note and deed of trust with the certificate as security for the payment. Before accepting the papers, the plaintiffs, through their agent, required the brokers to sign the name of the borrower to the formal application for the loan, as exhibited in the transcript, and that the certificate as to the title should be continued to the date of the transaction. Throughout, the negotiation for the loan was conducted entirely by the brokers with the plaintiffs, and it was the borrower who procured the second certificate from the defendant, the evidence showing that the defendant never came in contact either with the plaintiffs or the brokers. Payment of the note was not made at maturity, and when it was attempted to sell the premises under the trust deed, it was discovered that the certificates were untrue and that the grantors had conveyed the premises in fee simple by deed duly executed and recorded. ployment and the want of reasonable care and skill are pre-requisites to the maintenance of the action; but it must not be understood that an attorney is liable for every mistake that may occur in practice, or that he may be held responsible for every error of judgment in the conduct of his client's cause. Instead of that the rule is, that if he acts with a proper degree of skill and with reasonable care and to the best of his knowledge he will not be held responsible. Bowman v. Tallman, 27 How. Pr., 212, 274. If he fails in any of these respects he may, and sometimes does, not only forfeit all claim for compensation, but may also render himself liable to his client for any damage he may sustain from such neglect. Such liabilities frequently arise, and an attorney may also be liable to his client for the consequences of his want of reasonable care or skill in matters not in litigation. Business men not unfrequently seek legal advice in making or receiving conveyances of real property, and it is well settled that an attorney may be liable to his client for negligence or want of reasonable care and skill in examining titles in such cases, whether the error occurs in respect to the title of property CLIFFORD, J. (After stating the facts.) Attorneys employed by the purchasers of real property to investigate the title of the grantor prior to the purchase impliedly contract to exercise reasonable care and skill in the perform-purchased, or in the covenants in the instruance of the undertaking, and if they are negligent or fail to exercise such reasonable care and skill in the discharge of the stipulated service, they ment of conveyance, where the property is sold. Where the relation of attorney and client exits, there is seldom any serious difficulty in de |